Judgment and Order(CAV)
1. The main point for determination in this case is whether High Court in exercise of power under Section 24 of the Code of Civil Procedure can transfer a proceeding pending in one State to another court in another State merely because both the courts are under territorial jurisdiction of the same High Court. Considering the gravity of the point for determination, this court requested Mr. B Banerjee, learned senior counsel who was present in the court to render required assistance as Amicus Curiae and the learned senior counsel readily agreed to the request.
2. I have heard Mr. B Banerjee, learned senior counsel, Amicus Curiae Mr. K Doji for the respondents and Mr. Mr. R Dev on behalf of the petitioner.
3. The facts involved in the present proceeding is that opposite party Biswajit Sengupta who is a permanent resident of Tinsukia at present residing at Tezu in the State of Arunachal Pradesh in course of his employment. He married the petitioner herein on 17.4.2008 at Digboi within the State of Assam following Hindu rites. The parties started their matrimonial life at Shripuria Pathar in the District of Tinsukia and thereafter went to Tezu where the respondent No. 1 was residing because of his employment. It is alleged that since after marriage, the husband and his family members started torturing the wife and demanded dowry to the tune of Rs.50,000/- while the petitioner wife tolerated the torture meted out to her silently. A boy child was born to them on 20.7.2009 at IOC Hospital in Digboi in the State of Assam. Even the birth of a male child to a family did not improve the relation between the parties and it is alleged to have worsened further. The petitioner wife was physically and mentally tortured because of which she was compelled to leave her matrimonial house and returned to her paternal residence at Digboi on 12.9.2010. Barely three months have elapsed thereafter the husband/respondent No.1 instituted a divorce proceeding being T.S.(Divorce) No.12 of 2014 in the court of learned District Judge at Tezu in the State of Arunachal Pradesh and eventually a summon of the proceeding was served on the present petitioner. The petitioner immediately rushed to this High Court and filed an application under Section 24 of the Code of Civil Procedure praying for transfer of the proceeding from the court of learned District Judge at Tezu to the District Judge at Tinsukia on several grounds. She stated that she is under severe financial constraints and braving all odds, she managed to get a written statement filed at Tezu through a learned counsel but was not in a position to further contest the proceeding at Tezu inasmuch as she is a poor woman and that her six year old child is reading in Kindergarten class at Digboi. She does not have any source of income and has been living at the mercy of her parents. She further stated that her father is also a poor person being a painter by profession and is 75 years old. Her father has been suffering from various old age ailments and cannot support the petitioner financially or otherwise and under such circumstances, really the petitioner has been living at the mercy of her elder brother. On the other hand, respondent No.1 is a teacher of Government school and in addition to monthly salary of Rs.15,000/- he has also been earning about Rs.20,000/- from tuition. The respondent No.1 , therefore, shall have not difficulty in coming to his own home town for contesting the proceeding while the petitioner cannot go to Tezu for contesting the proceeding owing Tr. P (C) No.23 of 2015 Page 5 of 18 to her aforesaid difficulties. With these submissions on facts, petitioner prayed that the divorce proceeding pending in the court of learned District Judge at Tezu be transferred to the court of District Judge, Tinsukia in the State of Assam.
4. This court by order dated 25.5.2015 issued notice of motion observing that the question as to maintainability of the proceeding is to be decided in view of provision of Section-25 of the Code of Civil Procedure. By the same order, Mr. B Banerjee, learned senior counsel who was present in the court at that time was engaged as Amicus Curiae to assist this court on the point of law.
5. On being summoned, the husband/respondent No. 1 has entered appearance by engaging counsel.
6. Section -24 of the CPC has conferred power on High Court to transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it or to withdraw the same or may either try to dispose the same or transfer the appeal for disposal to any court subordinate and competent to try to dispose of the same. Section 24 of the CPC is a concurrent general provision which has vested power on the District Judge as well as the High Court for withdrawing any suit or appeal from any court subordinate to it or either dispose of the same or to transfer to any other court subordinate to it for disposal. What is necessary for Section-24 is that the court where the subject proceeding is pending must be subordinate to the High Court or the District Court as the case may be and there upon the District court or High Court may withdraw the same to itself and may either try to dispose of the same or may transfer the same for disposal to any other court within its territorial jurisdiction. Incidentally, the State of Assam and the State of Arunachal Pradesh are under the jurisdiction of the same High Court and so at the first blush, it appears that such an application under Section- 24 of the CPC would be maintainable for transferring a proceeding from Arunachal Pradesh to Assam and vice-versa. But once the provision of Section- 25 is perused, a serious doubt arises as to whether such a power can at all be exercised by High Court although both the courts are under the jurisdiction of the same High Court.
7. Section-25 of the CPC provides that on the application of a party and after notice to the other side and after hearing them, Hon ble Supreme Court may at any stage direct that any suit, appeal or other proceeding be transferred from a High Court or other civil court in one State to a High Court or civil court in any other State. The mentioning of the words of in any other State occurring in Section -25 (1) gives rise to reasonable doubt as to whether legislature in its wisdom has exclusively vested the power to transfer a proceeding pending in a court in one State to another court in another State with the Supreme Court only.
8. The provisions under sections 22 to 25 of the Code of Civil Procedure are the appropriate provisions in regard to transfer of proceedings from one court to another. Section 22 provides that when a suit may be instituted in more than one court in view of the provisions of section 16 to 20 of the Code and plaintiff being dominus litis chooses one court as per his convenience, a defendant may at the earliest opportunity and in all cases before settlement of issues, file an application for transfer of the suit to any of the other courts having jurisdiction to try the same and thereupon the court to which such application shall be filed , shall determine after hearing all sides in which of the courts having jurisdiction to try the suit , the same shall be tried. Section 23 of the Code relates to provisions as to which court such a transfer application shall be filed In Section-23 (1) it is provided that when the two courts having jurisdiction over a matter is subordinate to the same appellate court in that event application for transfer can be made before the appellate court. But when the court where the proceeding is pending and the court to which it is sought to be transferred are not subordinate to the same appellate court but they are under the control of the same High Court in that event, as per clause (2) of section 23, the application can be filed before the same High Court. On the other hand, if such courts are subordinate to different High courts , the transfer application can be filed in that High court unde4r whose jurisdiction the suit is pending. We are confronting here a question which does not appear to be directly addressed by section 23 of the Code. The Code contemplates a situation when the two subordinate courts having jurisdiction to try a suit are either under territorial jurisdiction of one High court or under two High courts does not deal with a situation when the two subordinate courts are situated in two different states under territorial jurisdiction of one High court. This is because most of the states of the country, have their own separate high court. Perhaps, the only exceptions are the high court of Punjab and Haryana and the Gauhati High court where more than one states are under control and superintendence of one High court.
9. Perhaps in view of the provision of Section-23 (2) of the CPC, applications are being filed before this court for transfer of proceedings pending in a court in one State under territorial jurisdiction of this court to a court situated in another State under the jurisdiction of this High Court. Incidentally, the Gauhati High Court at present has jurisdiction not only over the State of Assam but also over the States of Nagaland, Mizoram and Arunachal Pradesh. Prior to March 23, 2013 this High court had territorial jurisdiction over the States of Meghalaya, Manipur and Tripura. But after establishment of different High courts in those States, Gauhati High Court has no jurisdiction over those States any more. Mr. R Dev learned counsel for the petitioner in the present case has cited some instances to show that when these states were under jurisdiction of this High court, applications under Section 24 of the CPC used to be filed at the principal seat of the High court for transfer of a proceeding from one State to another and never before any question was raised as to whether such an application is maintainable. Since such a question was never before raised, so there was no occasion on the part of the High court to deal with such question. Now, that the question has arisen at the very out set during motion hearing and before the opposite party had appeared, the question needs to be answered.
10. Mr. B Banerjee, learned Amicus Curiae has placed reliance on the case of Durgesh Sharma vs- Jayashree Sharma reported in (2008) 9 SCC 648. In that case, Durgesh Sharma , the husband filed a divorce proceeding under section 13 of The Hindu Marriage Act, 1955 before Family Court at Ujjain in the state of Madhya Pradesh. His wife , Jayashree Sharma then filed an application under section 23 of the Code of Civil Procedure before High Court of Madhya Pradesh praying for transfer of the divorce proceeding at Ujjain to a competent court at Malegaon in the District of Nasik in Maharashtra. The High court of Madhya Pradesh by judgment dated 25.1.2007 allowed the application and transferred the divorce proceeding pending at Ujjain under its territorial jurisdiction to a court at Malegaon under territorial jurisdiction of Bombay High court. Aggrieved, husband Durgesh Sharma approached the Hon ble Supreme court challenging the order passed by the Madhya Pradesh High court transferring a proceeding outside its territorial jurisdiction. The Hon ble Supreme court allowed the SLP setting aside the order of the High court. The power and jurisdiction of High court under Section 24 of vis-a vis the provision of Section-25 of the Code came up for consideration in this case and the Hon ble Supreme Court has held that power of transferring a proceeding from one State to another has been consciously vested by legislature exclusively on the Supreme Court and a High Court in exercise of power under Section 24 CPC cannot exercise this jurisdiction.
11. Plaintiffs as a general rule is the dominus-litis to choose the forum for institution of proceeding and under a normal circumstance, defendants cannot raise any objection in regard thereto provided the court where the proceeding is pending has inherent jurisdiction to try the same. Section-22 CPC provides that when two different courts have competence and jurisdiction to try a matter and the proceeding has been instituted in one of these two courts, in that event the defendants may apply to have the suit transferred to another court and Section-23 lays down the procedure in regard to filing of such application. Hon ble Supreme Court held in the aforesaid case that earlier there was cleavage of opinions on the question whether a case could be transferred from a court having no jurisdiction to try it. The Law Commission, therefore, considered the question and suggested amendment in the provision. In the Statements of Objects and Reasons, the following observations were made:
There is a conflict of decisions with regard to the question whether Section 24 applies in relation to a transfer of a suit from a court which has no jurisdiction to try it. The High Court of Andhra Pradesh has held that the language of Section 24 is very wide and there are no restrictions or impediments in the way of the High Court exercising the power of transfer merely because there is a dispute regarding jurisdiction. Some other High Courts have taken a contrary view. It is being clarified that a case may be transferred from a court which has no jurisdiction to try it.
12. Pursuant to the aforesaid recommendation of the Law Commission, amendment of the CPC was made in 1976 and this is how present Section-24 has come into existence. Section-24 of the CPC after amendment on 1976 is quoted below:
24. General power of transfer and withdrawal.- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion, without such notice, the High Court or the District Court may, at any stage-
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
(3) For the purposes of this section, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.
(4) The court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.
13. On the other hand, Section-25 CPC as it existed in the Code of Civil Procedure, 1908 vested power in the Governor General in Council to transfer in certain circumstances a suit, appeal or other proceeding from one High Court to another High Court. In the year 1937 by issuance of the Government of India (adaptation of Indian Law) order, 1937 some amendments were made in Section-25 of the then CPC. Prior to the amendment the State Government could exercise power by affecting transfer from one High Court to another High and this is why Law Commission made recommendation for taking away this power from the State Government in view of analogous provision of Section-406 of the Code of Criminal Procedure. The Law Commission made recommendation for empowering Hon ble Supreme Court to transfer cases and appeals from one court to another court. This is how wide power on transfer has been taken out form the power of the State Government and has conferred power consciously on the Supreme Court. Hon ble Supreme Court considered Clause-12 of the statements of objects and reasons of the Law Commission in this regard and the same is quoted below:
Clause 12.- Section 25 of the Code empowers the State Government to transfer suits, etc. in certain circumstances from the High Court exercising jurisdiction in the State to another High Court. This section is very narrow in scope as it provides only for the transfer of suit, appeal or other proceeding pending in a High Court presided over by a Single Judge. Besides, the State Government, does not seem to be an appropriate agency for exercising the power of transfer. Section 25 is, therefore, being substituted by a new section which provides for the transfer to the Supreme Court the existing power vested with the State Government and to confer on the Supreme Court such wide powers of transfer as it has in criminal cases under Section 406 of the Code of Criminal Procedure, 1973. Further, the new section covers transfer of cases from or to the Original Side of a High Court to or from any other civil court. The new section is thus wider in scope than Section 406 of the Code of Criminal Procedure, 1973.
14. The present Section-25, therefore, is an outcome of aforesaid historical and legislative events. The Hon ble Supreme Court has held in the case of Durgesh Sharma (supra) that section 23 of the CPC is nothing but a provision of procedure and it does not confer any power of transferring a proceeding at all. The findings of the Hon ble Supreme Court in this regard have been given from para-52 to 57 of the aforesaid Judgment which are quoted below for ready reference:
52. The counsel for the respondent wife submitted that provisions of Sections 23(3) and 25 of the Code should be harmoniously construed. Referring to Priyavari Mehta12 and Lakshmi Nagdev15 it was submitted that Section 23(3) of the Code did not stand deleted or superseded by Section 25 of the Code. If it is held that for transfer of a case, appeal or other proceeding from a court subordinate to one High Court to a court subordinate to another High Court, only this Court can be approached, Section 23(3) of the Code will become nugatory, redundant and futile. No court of law will interpret one provision of law which will make another provision superfluous or ineffective. It was, therefore, submitted that it has been rightly held that the parties must be left to choose the forum either under Section 23(3) or 25 of the Code.
53. We are unable to uphold the contention. In our considered view, the fallacy in the argument lies in the fact that it presumes and presupposes that Section 23 of the Code is a substantive provision which authorises a court mentioned therein to order transfer. It is not so. The said section, as held by us, is merely a procedural one or a machinery provision and provides mode, method or manner in approaching a court for making an application. It does not empower a court to effect transfer. Moreover, Section 25 of the Code is a complete code dealing with substantive as well as procedural law. Section 23, in our opinion, therefore, cannot be interpreted in the manner suggested by the learned counsel appearing for the wife.
54. After the commencement of the Constitution and establishment of the Supreme Court (this Court), Parliament thought it proper to amend Section 25 of the Code and accordingly, it was substituted by empowering this Court to order transfer from one High Court to another High Court or to one civil court in one State to another civil court in any other State.
55. It is no doubt true that even when Section 25 in the present form was substituted by the Amendment Act of 1976, sub-section (3) of Section 23 of the Code has neither been deleted nor amended. That, however, is not relevant. Since in our considered view, Section 23 is merely a procedural provision, no order of transfer can be made under the said provision. If the case is covered by Section 25 of the Code, it is only that section which will apply for both the purposes, namely, for the purpose of making application and also for the purpose of effecting transfer. On the contrary, reading of sub-section (3) of Section 23 of the Code in the manner suggested by the learned counsel for the respondent wife would result in allowing inroad and encroachment on the power of this Court not intended by Parliament. Section 23, therefore, in our considered view, must be read subject to Section 25 of the Code. The decisions taking a contrary view do not lay down correct law. We, therefore, overrule them. Even if such power was with a High Court earlier, it stood withdrawn with effect from 1-1-1977 in view of Section 25 of the Code as amended by the Code of Civil Procedure (Amendment) Act, 1976.
56. We are unable to agree with the view that in such cases, inherent powers may be exercised under Section 151 of the Code as held by the High Court of Punjab and Haryana in SBI8. It is settled law that inherent powers may be exercised ex debito justitiae in those cases, where there is no express provision in the Code. The said power cannot be exercised in contravention or in conflict of or ignoring express and specific provisions of law. Since the law relating to transfer is contained in Sections 22 to 25 of the Code, and they are exhaustive in nature, Section 151 has no application. Even that contention, therefore, cannot take the case of the respondent wife further.
57. For all these reasons, in our opinion, the order passed by the High Court is not sustainable and deserves to be set aside. We hold that a High Court has no power, authority or jurisdiction to transfer a case, appeal or other proceeding pending in a court subordinate to it to any court subordinate to another High Court in purported exercise of power under sub-section (3) of Section 23 of the Code and it is only this Court which can exercise the said authority under Section 25 of the Code. The order passed by the High Court, therefore, deserves to be set aside and is accordingly set aside.
15. The case of Durges Sharma(supra) subsequently came for consideration before another Bench of the Hon ble Supreme Court in the case of Nahar Industrial Enterprises Ltd. vs- Hongkong and Shanghai Banking Corporation reported in (2009) 8 SCC 646. In that case The Hon ble Punjab and Haryana High court had transferred a suit pending in a court under its territorial jurisdiction to the Debt Recovery Tribunal in the state of Maharashtra beyond its jurisdiction. Considering two earlier judgments by coordinated Benches of the Supreme court , it was held that the question as to jurisdiction of tribunal vis a vis civil court was in the uppermost in the mind of the court in the case of Indian Bank vs ABS Marine Products Ltd. reported in (2006)5 SCC 72, the same question was not dealt with in the later case of SBI v Ranjan Chemcals Ltd reported in (2007)1SCC 97. The Hon ble Supreme court held that a Debt Recovery Tribunal is neither a civil court nor could the jurisdiction of civil court be taken away by transferring a suit from a civil court to a DRT. The view taken by the Hon ble Supreme Court in the case of Durgesh Sharma(supra) has not been modified by the subsequent Bench of the Hon ble Supreme Court in any way. In the concluding paragraph of the said judgment, Hon ble Supreme Court observed that the Punjab and Haryana High Court could not have transferred a suit from Civil Court at Ludhiana to the DRT and accordingly the SLP Was allowed. The result is that the ratio of Durgesh Sharma (supra) still holds the field.
16. Section 24 of the Code does not deal with power of High court to transfer a suit beyond its territorial jurisdiction or from one state to another within its jurisdiction. There is no mention of inter- state transfer in that section at all. Such a mention only finds place in section 25 of the Code and the power has been conferred on Supreme Court thereby. Exercise of power under section 24 CPC to transfer a suit pending in a court in one state to another court in another state merely because both the states are under territorial jurisdiction of same high court would amount to adding words in section 24 of the CPC which is not permissible under the settled principles of interpretation. A bare perusal of section 25 CPC shows that such power has been exclusively vested on Supreme Court alone. Therefore, there is no doubt that power to transfer a proceeding from one State to another State has been exclusively and consciously vested by the legislature on the Supreme Court alone and so High Court in exercise of power under Section 24 of the CPC cannot usurp that power under the garb of Section -23 and or Section 151 thereof.
17. In view of above, the application filed under Section 24 CPC praying for transfer of the divorce proceeding from the Court of District Judge, Tezu to the Court of District Judge, Tinsukia is not maintainable.
18. Accordingly the transfer petition stands dismissed.
19. No order as to cost.
20. Interim order passed earlier shall stand automatically vacated.